Friday, February 6, 2009

Bid to Reclassify Guantanamo Data Marches On

Despite President Obama’s promises to bring a new wave of transparency to government, the Justice Department is still opposing a media-led effort to give the public access to certain court records pertaining to war-on-terror detainees at Guantanamo Bay.

Government lawyers submitted a legal brief last week objecting to an attempt by the Associated Press, the New York Times and USA Today to view some government filings in habeas corpus cases brought on behalf of Guantanamo detainees. The filings in dispute are portions of so called “factual returns” in which the government offers evidence said to justify keeping each detainee locked up.

The government filed the documents under seal but said the contents were unclassified. Now, however, the Justice Department says some of the data should have been classified.

“Regrettably, the speed of the redaction process resulted in errors, and subsequent review has revealed that classified material was not fully redacted from the unclassified returns,” Justice Department lawyers wrote. They said they fear that classified information could be assembled from a number of different cases to form a “mosaic” that would be inimical to national security.

“If the unclassified factual returns were released to the public now… the classified information contained therein could be aggregated and analyzed by interests hostile to the United States,” government attorneys wrote.

The Justice Department said officials plan to review the documents again and file some portion of them publicly, but the newspapers’ lawyers have argued that re-redacting the documents could do more harm than good by alerting detainees, who saw the original filings, to exactly which information was mistakenly declassified.

Justice Department attorneys also argued that there is no First Amendment right to view any court documents filed in connection with the habeas cases. “There is no tradition of judicial proceedings at all in these circumstances, much less open proceedings,” the lawyers wrote. They noted that oral arguments, unclassified versions of briefs, and opinions in the cases have been made public.

The Justice Department’s request to reclassify some of the records and keep them secret was filed in December. After President Obama was sworn in, the Justice Department asked judges for delays to re-evaluate the government’s position on some Guantanamo-related issues, but no delay was requested to review the government’s opposition to the newspapers’ request to obtain the records.

Approximately 135 habeas cases are pending in federal court in Washington seeking the release of or changes to the conditions of confinement for about 210 of the roughly 245 prisoners at Guantanamo Bay. Soon after taking office last month, Obama ordered Guantanamo closed within a year and asked for a delay in pending military trials there. However, the question of what to do with the men detained there remains unresolved.